In re S.S.

Filed 2/24/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re S.S., et al., Persons Coming B314043
Under the Juvenile Court Law.
_________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 19CCJP07836)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

E.S.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles
County, Debra Archuleta, Judge. Affirmed.
Daniel G. Rooney, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jane Kwon, Deputy County
Counsel, for Plaintiff and Respondent.
_____________________________
 E.S. (Mother) appeals from the juvenile court’s order
terminating her parental rights under Welfare and Institutions
Code section 366.26.1 She contends that the Los Angeles County
Department of Children and Family Services (DCFS) and the court
failed to comply with their duties of inquiry under section 224.2 and
related rules of court. We agree with DCFS that any such failure
was harmless and, on that basis, affirm the court’s order.

FACTUAL AND PROCEDURAL SUMMARY2
Shortly before midnight on December 3, 2019, a police
officer observed Mother pushing a stroller with her four-month-old
daughter, S.S., inside. It was raining and the temperature was
below 50 degrees. The officer believed Mother was under the
influence of a stimulant, “most likely methamphetamine.” The
officer arrested Mother on suspicion of child endangerment and
being under the influence of drugs. S.S. was placed in protective
custody and taken to a hospital for examination.
On December 4, 2019, Mother told a social worker that S.S.’s
father was Manuel R., who has custody of three other children the
two had together. The social worker asked Mother if there were
other relatives who could be contacted and assessed as a relative
caregiver, and Mother answered, “[N]o.” Mother also “denied
Native American ancestry for the family.”

1Subsequent unspecified statutory references are to the
Welfare and Institutions Code.
2 Because the sole issue on appeal is whether DCFS has
complied with its duty of inquiry under ICWA-related California
law, we focus our summary of facts and procedural history on the
facts relevant to that issue.

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 Manual R. denied being S.S.’s father and said he ended his
relationship with Mother more than two years earlier. He said
that Mother had previously told him that S.S.’s father was in jail
or prison, but she never told him the father’s name.
On December 6, 2019, DCFS filed a juvenile dependency
petition under section 300, subdivision (b), alleging that Mother
had been arrested and had no plan for S.S.’s ongoing care and
supervision. The petition included a statement on Judicial Council
form ICWA-010 (Jan. 1, 2008) that a social worker had “made”
an “Indian child inquiry,” and that S.S. “has no known Indian
ancestry.”
Mother did not appear at a detention hearing held on
December 9, 2019. The court detained S.S. and placed her in
DCFS custody. The court ordered monitored visitation for Mother
if she contacted DCFS to request visits. The court deferred the
“determination of ICWA status . . . for the parents[’] appearance.”
DCFS placed S.S. in foster care with someone who remained
her caregiver throughout the proceedings and whom the court
subsequently granted de facto parent status and identified as the
prospective adoptive parent.
On December 16, 2019, a social worker spoke with Mother
by telephone. The social worker asked Mother about potential
relatives who may be considered for placement, and Mother replied
that “she did not have any relatives to provide at this time” and
“she does not wish for [S.S.] to be placed with [S.S.’s maternal
grandmother].” She also “did not wish to provide the child’s father’s
information.”
In a jurisdiction / disposition report filed on January 9, 2020,
DCFS reported that Mother’s whereabouts were unknown and she
had not made herself available for an interview. A search for S.S.’s
father was “unsuccessful.” The report further noted Mother’s denial

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of Native American ancestry and stated that the ICWA “does not
apply.”
On January 9, 2020, Mother was present in court for the
first and only time in this case. She filed a parental notification
of Indian status form (Judicial Council Forms, form ICWA-020)
stating that she has “no Indian ancestry as far as I know.”
Our record does not include a reporter’s transcript of
the January 9, 2020 hearing. In a minute order issued after the
hearing, the court stated that it “does not have a reason to know
that [S.S.] is an Indian child, as defined under ICWA, and does not
order notice to any tribe of the [Bureau of Indian Affairs]. Parents
are to keep [DCFS], their attorney and the court aware of any
new information relating to possible ICWA status. ICWA-020,
the parental notification of Indian status [form,] is signed and filed.
The court does not have a reason to know that ICWA applies as to
Mother.” (Capitalization omitted.)
The court further found that S.S.’s father is unknown.
S.S.’s father was never identified to DCFS or the court and his
whereabouts remained unknown throughout the proceedings.
DCFS’s efforts to identify and locate him are detailed in a
declaration of due diligence, which the court found to be complete.
DCFS filed an amended dependency petition on January 22,
2020, which added an allegation under section 300, subdivision (b)
that Mother is a current and frequent abuser of illegal substances,
which renders her incapable of providing regular care for S.S.
During the combined jurisdiction and disposition hearing
on January 30, 2020, the court found the amended petition’s
allegations true, declared S.S. a dependent of the court, and
removed her from Mother’s custody. S.S. continued to be placed
with her foster parent.

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 In April 2020, S.S.’s maternal grandmother contacted
DCFS to ask about visits with her. She also stated that she was
interested in adopting S.S. “[V]irtual visits” (due to the COVID-19
pandemic) between maternal grandmother and S.S. were scheduled
for once per week. Maternal grandmother participated in three
of the eight visits scheduled in May, June, and July 2020. In a
report filed in January 2021, a social worker stated that maternal
grandmother’s visits “remain[ed] inconsistent.”
At a hearing held on January 13, 2021, counsel for Mother
asked that the court consider possible placement with maternal
grandmother. The court did not respond to this request. At
the conclusion of that hearing, the court terminated Mother’s
reunification services and set the matter for a hearing to be held
pursuant to section 366.26.
In April 2021, the court granted S.S.’s counsel’s request that
DCFS assess the maternal grandmother for possible placement
of S.S. with her. In connection with the assessment, the maternal
grandmother told a social worker that Mother had been living with
her before S.S.’s birth and thereafter until a few days before DCFS
took the four-month-old S.S. into protective custody. The maternal
grandmother said she would like S.S. placed in her home and was
willing to provide permanency for the child. DCFS recommended
that S.S. remain in her current placement with a prospective
adoptive parent. On May 6, 2021, the court denied the maternal
grandmother’s request for placement.
In a report prepared for the section 366.26 hearing,
DCFS noted the court’s January 9, 2020 finding that the court
did not have a reason to know that S.S. is an Indian child and
“recommended that the court find that [ICWA] does not apply as
to this case.”

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 On July 14, 2021, the court held a hearing pursuant to
section 366.26. Mother was not present. The court terminated
Mother’s parental rights to S.S., approved the permanent plan of
adoption, and designated S.S.’s foster parent as her prospective
adoptive parent.
Mother filed a timely notice of appeal.

DISCUSSION
Mother contends that DCFS failed to satisfy its duty under
California law to inquire whether S.S. is or may be an Indian child
within the meaning of ICWA. DCFS argues that Mother has failed
to demonstrate that any such failure was prejudicial and the court’s
order terminating parental rights should therefore be affirmed.
We agree with DCFS.
“Under California law, the court and county child welfare
department ‘have an affirmative and continuing duty to inquire
whether a child,’ who is the subject of a juvenile dependency
petition, ‘is or may be an Indian child.’ [Citations.] The child
welfare department’s initial duty of inquiry includes ‘asking the
child, parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child, and the party
reporting child abuse or neglect, whether the child is, or may be,
an Indian child and where the child, the parents, or Indian
custodian is domiciled.’ (§ 224.2, subd. (b).)” (In re Austin J.
(2020) 47 Cal.App.5th 870, 883 (Austin J.).)3

3 Federal regulations implementing ICWA require that
state courts, “at the commencement of the proceeding,” “ask
each participant in an emergency or voluntary or involuntary
child-custody proceeding whether the participant knows or
has reason to know that the child is an Indian child.” (25 C.F.R.
§ 23.107(a) (2022).) State courts must also “instruct the parties

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 Here, Mother informed a social worker at their first meeting
that Mother’s family had no “Native American ancestry.” At
her first court appearance on January 9, 2020, Mother filed an
ICWA-020 form stating that she has “no Indian ancestry as far as
[she] know[s].” According to a minute order regarding that hearing,
the court determined that it “does not have a reason to know
that ICWA applies as to Mother.” Our record does not include
a reporter’s transcript of the January 9, 2020 hearing and we
therefore presume that the court received evidence sufficient to
support that conclusion. (See Cal. Rules of Court, rule 8.120(b) [“[i]f
an appellant intends to raise any issue that requires consideration
of the oral proceedings in the superior court, the record on appeal
must include a record of these oral proceedings in the form of ” a
reporter’s transcript, an agreed statement, or a settled statement];
Estate of Fain (1999) 75 Cal.App.4th 973, 992 [“it is presumed that
the unreported trial testimony would demonstrate the absence of
error”].)
Mother contends that even if DCFS satisfied its duty
of inquiry as to herself, social workers failed to also ask S.S.’s
maternal grandmother—an “extended family member[ ]”—
about Indian ancestry. (§ 224.2, subd. (b); Cal. Rules of Court,
rule 5.481(a)(1); see 25 U.S.C. § 1903(2) [defining extended family
member to include grandparents].) The maternal grandmother,
Mother points out, initiated contact with DCFS in April 2020,
visited with S.S., and had ongoing contact with social workers,
and yet there is no record of any ICWA-related inquiry to her.

to inform the court if they subsequently receive information that
provides reason to know the child is an Indian child.” (Ibid.)

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 Even if DCFS failed to fulfill its duty of inquiry with respect
to the maternal grandmother, Mother has failed to show that the
failure is prejudicial.
Social workers have no duty under federal law to ask
extended family members about possible tribal membership.
(In re A.C. (2021) 65 Cal.App.5th 1060, 1069.) The error, if any,
is an error of state law. (Ibid.; accord, In re Benjamin M. (2021) 70
Cal.App.5th 735, 742 (Benjamin M.).) The usual test for prejudicial
state law error is whether, “ ‘after an examination of the entire
cause, including the evidence’ ” (People v. Watson (1956) 46 Cal.2d
818, 836), we are “of the ‘opinion’ that it is reasonably probable
that a result more favorable to the appealing party would have
been reached in the absence of the error.” (Ibid.; see Benjamin M.,
supra, 70 Cal.App.5th at p. 742 [Watson standard applies to
agency’s failure to comply with initial duty of inquiry under
California’s ICWA-related law].) Although an appellant ordinarily
has the burden of establishing prejudice (Adams v. MHC Colony
Park, L.P. (2014) 224 Cal.App.4th 601, 614), a parent’s ability to
make this showing based upon the record in failure-to-inquire cases
can be problematic “when the record is inadequate because of the
social services agency’s failure to document its inquiries.” (A.C.,
supra, 65 Cal.App.5th at p. 1070.) Some courts have addressed
this problem by requiring an appellant who asserts a breach of the
duty of inquiry to, at a minimum, make an offer of proof or other
affirmative assertion of Indian heritage on appeal. (Id. at p. 1069;
In re Noreen G. (2010) 181 Cal.App.4th 1359, 1388; In re H.B.
(2008) 161 Cal.App.4th 115, 122; In re N.E. (2008) 160 Cal.App.4th
766, 769; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430−1431;
but see In re Y.W. (2021) 70 Cal.App.5th 542, 556 [a parent “does
not need to assert he or she has Indian ancestry to show a child

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protective agency’s failure to make an appropriate inquiry under
ICWA and related law is prejudicial”].)
In Benjamin M., supra, 70 Cal.App.5th 735, our colleagues
in the Fourth Appellate District recently rejected such a
requirement. (Id. at p. 745.) The court considered various means
of reviewing this issue and concluded “that in ICWA cases, a court
must reverse where the record demonstrates that the agency has
not only failed in its duty of initial inquiry, but where the record
indicates that there was readily obtainable information that was
likely to bear meaningfully upon whether the child is an Indian
child.” (Id. at p. 744.)
Applying Benjamin M.’s test here, we note that the maternal
grandmother is the only person Mother identifies as a person social
workers should have asked about S.S.’s Indian ancestry. 4 We thus
need only consider whether DCFS’s failure to inquire of maternal
grandmother was prejudicial under the Benjamin M. standard.
We conclude that it was not. It is significant for the purposes
of this analysis that the maternal grandmother expressed her
desire to adopt S.S. and, with the aid of S.S.’s counsel, maternal
grandmother sought to have S.S. placed with her. Mother’s counsel
also requested that maternal grandmother be considered for
placement. Under ICWA, when an Indian child is the subject of
foster care or adoptive placement proceedings, “preference shall be
given, in the absence of good cause to the contrary, to a placement
with . . . [¶] . . . a member of the Indian child’s extended family.”
(25 U.S.C. § 1915(a) & (b).) Thus, if S.S. is an Indian child, that
fact would support the maternal grandmother’s efforts to have

4 Mother does not contend that DCFS or the court failed to
satisfy any duty of inquiry with respect to the paternal side of S.S.’s
family.

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S.S. placed with her. The maternal grandmother, Mother’s counsel,
and S.S.’s counsel, each of whom requested that the court consider
placing S.S. with the maternal grandmother, would therefore have
a strong incentive to bring to the court’s attention any facts that
suggest that S.S. is an Indian child. Their failure to do so implies
that the maternal grandmother is unaware of such facts. Requiring
that social workers now inquire of her as to her knowledge of such
facts, therefore, is not “likely to bear meaningfully upon whether
the child is an Indian child.” (Benjamin M., supra, 70 Cal.App.5th
at p. 744.) The social worker’s failure to make that inquiry is
therefore harmless.

DISPOSITION
The orders appealed from are affirmed.
CERTIFIED FOR PUBLICATION.

ROTHSCHILD, P. J.
We concur:

CHANEY, J.

BENDIX, J.

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